Citizens United

Unauthorized Discussion of Politicians Strictly Prohibited

Office-holders want to control what people can say about them, who can say it, when they can say it, and whom they can say it with.

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David Brock appears to be the sort of apostate who abandons his faith but not his fanaticism. So the former Clinton nemesis might not find much funny about this irony: The candidate he supports for president wants Congress to have the power to ban the book Brock has just written—a defense of that very same candidate.

The book is "Killing the Messenger: The Right-Wing Plot to Derail Hillary Clinton and Hijack Your Government." It defends Clinton, whom Brock supports through two groups he founded (American Bridge and Media Matters), from the meanies at The New York Times, which Brock calls a "megaphone for conservative propaganda" (yes, really).

Clinton supports a constitutional amendment overturning Citizens United. Political reporters and others who don't know any better write about Citizens United as though it were a "campaign-finance case" that took "the reins off big-money electoral donations." This is wrong. Campaign donations were never at issue. The group that gave the case its name never tried to make a campaign donation. It made a movie. About Hillary Clinton. (To put the matter mildly, it wasn't a very flattering movie.)

Campaign-finance law at the time regulated not just donations to candidates and political parties, but also "electioneering communications" made within 30 days of a primary or 60 days of an election. This meant Citizens United couldn't advertise or air the movie as it wanted to. So it sued. During oral arguments, Justice Anthony Kennedy asked Solicitor General Malcolm Stewart whether the law also might apply to a book: "Your position is that under the Constitution… the book itself could be prohibited." Stewart answered yes, "if the book contained the functional equivalent of express advocacy"—i.e., if it used magic words like "vote for" or "vote against" or, significantly, did not use those words but still implied the same message.

Sorry, said the court. There's this obscure little provision near the back of the Constitution called the First Amendment.

Unfortunately, Congress is not the only governmental entity that seems to have overlooked that provision. Many states have done so as well.

The most recent is Missouri. On Friday, the Missouri Ethics Commission fined Ron Calzone $1,000 for failing to register as a lobbyist and submit the required paperwork. The Ethics Commission justified this on the grounds that Calzone describes himself as a "citizen lobbyist." He heads a group called Missouri First that tries to influence public policy in the Show Me state.

The bill of particulars against Calzone reports that he: "met with legislators"; "testified" before the Missouri legislature; and "appear(ed) as a witness before committees." Yikes.

Never mind that Missouri First does not lobby for clients, as actual lobbyists do. Or that Calzone does not get paid to talk to legislators. Or give them gifts or wine and dine them. In fact, he says, Missouri First doesn't even have a checking account to pay him with. As far as the Ethics Commission is concerned, he can't speak to legislators until he gets the state's permission.

And who filed the original complaint, by the way? The Missouri Society of Government Consultants—the state's association for professional lobbyists.

Ohio has pulled the same stunt. Another citizen activist, Edmund Corsi, had a website where he blogged about Buckeye State politics. He said some not-nice things about a local Republican leader, Ed Ryder. Ryder went to the Ohio Elections Commission, which told Corsi that because he spent about $40 per month on the website, his blogging was illegal unless he also registered with the state, filed reports, and subjected himself to regulation as a political action committee.

Nevada likewise tried to make a group called Citizens Outreach register as a PAC after it distributed two fliers critical of a Democratic lawmaker. The state's Democratic secretary of state claimed citizen groups could not engage in political expression without first registering with the state, reporting their expenditures, and disclosing their donors. The Nevada Supreme Court ultimately overruled him.

Delaware, meanwhile, wants to force a nonprofit group to disclose all its donors for the past four years because it distributed a voter guide on candidates' positions. The group in question is conservative. But if Delaware prevails, liberal groups that also offer voter guides, such as the Sierra Club and NARAL Pro-Choice America, could be forced to expose all their donors too.

This is precisely what Alabama did back during the civil-rights movement, when it tried to stymie the NAACP's activity by demanding its membership list. The Supreme Court ruled the demand unconstitutional.

The common thread running through these tales, and many others like them, is plain enough: Politicians and government office-holders want to control what people can say about them, who can say it, when they can say it, and whom they can say it with. They're not trying to protect democracy from corruption. They're trying to protect themselves from criticism.

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  1. Why does this not surprise me at all? Power wants to hold onto power. Our political class has no relation to the rest of us and does not want to hear from us. We should just all to as told.

    If I could afford it I would run for office on the platform that all I want is all the benefits that those in office have. No platform on issues, just the benefits I can get.

  2. These laws are usually touted to protect the people”a influence over politics. Is there any sweeter irony for them being used by professional lobbyist guilds to suppress amateurs?

  3. I assume the ACLU will be representing these individuals.

    1. Perhaps, but the ACLU has (fortunately) retreated from the aggressive “free speech” position it used to hold, and now is careful only to take on “easy” cases or “popular” causes, holding largely to positions that even conservative academics like Eugene Volokh can agree with. It fell to the American Association of Criminal Defense Attorneys to defend inappropriately deadpan Internet “satire” in New York, arguing ridiculously that this way of stirring up controversy with twisted words is “speech with academic value.” See the documentation of America’s leading criminal satire case at:

      http://raphaelgolbtrial.wordpress.com/

        1. I certainly hope that is not the case, because not being liked will (or at any rate should) soon be added to our excellent national catalog of crimes. Nowhere, after all, does the federal “constitution” declare that anyone has the right not to be liked. And for good reason. Such a right would be a massive impediment to the proper functioning of our entire criminal justice system. Jurors would no longer know how to make up their minds, and the jails and prisons of America, upon which so much of our economy runs, would rapidly be emptied of a large portion of their population. That, clearly, is something that must not happen, so I move for the rapid criminalization of all those who are not liked, particularly when they come snooping around academic departments with insidious accusations that everyone knows must be false ? a source, were one needed, of even less likability, and hence of renewed strength for our economy.

  4. I’m very glad to see this article. Everytime Citizen’s United and the issue of money comes up, my argument is always that the politician’s don’t want money out of politics at all. They simply want greater control over it and to have it funneled directly to them or not at all. Politicians loathe not having control over their own message not to mention being criticized.

  5. How exactly is it constitutional to register lobbyists, generally? Doesn’t that conflict with the First Amendment?

    1. At the federal level that is in the main body of the Constitution, the right to petition the government for redress of grievances. Restricting petition to official lobbyists is putting a priesthood between the people and the governments that supposedly serve them.

    2. Yeah, it seems the First Amendment is pretty clear on this:

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

      But, you know.. corporations are not people (unless they’re unions and other “good” corporations.)

    3. Shouldn’t everyone have the right to lobby legislators? Make the corporate lobbyists line up with everyone else.

  6. Citizens speaking out against government or government officials. Shocking. It’s about time someone took greater efforts to overturn this “freedom of speech” thing.

  7. OT: an article about the Cynthia Whitlatch case.

    Toward the bottom there are two links to her OPA interviews: it is interesting reading. For example when she has to say this:

    And, and I know…he didn’t hit my car, so I know given the climate today, if I didn’t have a dent in my car, as officers, we’re really not allowed to be victims, per se, and so I kinda was like well, if I see him at the corner I’ll stop him, if I don’t, so be it.

    I think it is the sign of the times when a police officer bemoans that she can’t claim victim status without having minimal independent evidence that she was attacked.

  8. Shrillary’s position on this disqualifies her to be President .. or, for that matter, dogcatcher. But then so does her record as Secretary of State, her behavior as First Lady, her brodingnagian stupidity, her bitter temper, and her fatuous Liberal litany.

    Pity she’s going to run against Trump, who is nearly half as bad. Be nice if we could get somebody who actuallly has a quarter to buy a clue.

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  10. The group that gave the case its name never tried to make a campaign donation.

    According to the supporters of CFR, they did. It was called an ‘in-kind contribution’. Essentially, it was speech so effective, so powerful, it had monetary value to the candidate, therefore allowing said speech to be regulated.

    1. Which underlines the central flaw in the entire concept of Campaign Finance Reform; the notion that it is acceptable to curtail political speach by citizens for any reason whatsoever.

      Wanna reform campaign finance? I say we first repeal all current campaign finance laws except for the ones regarding disclosure, and see where we are.

      If nothing else, the exploding heads should be entertaining.

      1. Why not disclosure too?

        Serously… why does everyone have a right to know that I support candidate X?

  11. This is the exact heart of Citizen’s United. It pisses me off to no end when any liberal retard talks about overturning it.

    I mean, how dense do you have to be to understand that the whole point of these laws is to keep people from talking shit about a politician right before they are up for election?

  12. Mmmmmm, Calzone!

    Sorry, didn’t have lunch

  13. The FYTW clause restricts the right to free speech to “the right kind of free speech.” I’m quite surprised that Hinkle dishonestly ignored this to make his stupid point. What’s wrong with these Reason writers?

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  16. Slightly off-topic, but in a very similar (and disturbing) vein: I saw a post on Facebook (I gathered it originated from a friend-of-a-friend, but it may have been excerpted fro some online article), about a fellow who noticed his state legislator at a Home Deport (or similar place), and asked him a question about some policy or another (I think it was in order to advance some leftist crap for which I have no sympathy, but that’s irrelevant in this case), and the legislator flat out refused to talk with him, which is frankly bad enough. I would never vote for someone like that. But then a couple hours later, that same legislator posted on his Facebook page, to the effect of how he always carries a pistol, and how some “smartypants” at the home repair store is lucky he didn’t get shot!

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